- Sep 29, 2009
- 105
- Category........
- Visa Office......
- Hong Kong
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- November 2009
- Med's Done....
- October 2009 and 15 April 2011
- Interview........
- 4 April 2011
- Passport Req..
- 4 April 2011
- VISA ISSUED...
- 7 July 2011
- LANDED..........
- 15 July 2011
Topic: Can Permanent Residents (PRs) count time abroad with a Canadian spouse toward their 730-day PR quota?
This topic has been discussed in other threads, but only as a secondary issue, buried under a topic heading that has nothing to do with a PR counting time abroad toward the PR quota. The purpose here is to bring the matter to the attention of any PRs who cannot meet the PR quota by spending 730 days in Canada per five-year period.
This topic is discussed thoroughly in Permanent Residency Obligations, under the topic Buying an Apartment in Canada to Meet Residency Requirements. Thanks go to Matthew for his excellent research on this complex and important issue, and to the many others like PMM who also contributed important information.
In brief, it does seem that a PR may count time spent abroad toward the PR quota as long as the PR was living with a Canadian citizen. It does not seem to matter whether the PR accompanies the citizen while abroad, or the citizen accompanies the PR – as long as they were living together abroad.
I say “seem” because in one court case the judge would have ruled against the PR (only humanitarian considerations led to a decision in favour of the PR), saying that it was the citizen who accompanied the PR, not vice-versa, and therefore the time abroad did not count toward the PR Quota. To understand this narrower, legalistic interpretation of “accompany”, go to
Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (I.R.B.)
All these cases can be looked up on http://www.canlii.org/en/index.php
Notwithstanding the Smith v. Canada case, several others DO allow the PR to count days abroad IF they were living with a Canadian citizen spouse. The most recent case was Li v. Canada (Citizenship and Immigration), 2009 CanLII 74606 (I.R.B.). Most compelling is the judge’s decision mentioning previous cases, and giving a clear rationale:
“I have looked at two former decisions of this Tribunal which considered this issue. While these decisions are not binding upon me, I consider them to be indicative of the manner in which this Tribunal has interpreted subsection 28(2) of the Act previously.[4] In Mkdsi and Abraham the panels held that the word “accompanying” is to be interpreted according to the common sense and ordinary meaning of the word which includes to “coexist” or “coexisting”.[5] There was no suggestion that the appellant and his wife were not living together in China during the relevant period. Therefore I conclude that the appellant was accompanying his wife.”
The point to take from this decision is that it does not matter who (citizen or PR) had the principal reason to be abroad; the only thing that matters is whether they were living together or not.
So, there are several court or panel decisions that allow the PR to count time spent abroad living with a Canadian spouse, and one that (Smith v. Canada) that worries about who accompanied whom. It would be nice to have 100% certainty on this issue, but we don’t.
There may be some PRs who wouldn’t mind the uncertainty, time, and expense of appearing in front of a panel, but I’d prefer to avoid the whole process if possible. Here’s how.
At the border, if an Immigration Officer is dubious that the PR has met the 730-day quota, have at the ready proof of the days spent abroad with the Canadian spouse, and refer the border officer to CIC Operational Manual ENF 23 Loss of Permanent Resident Status, page 18, section 7.5. Here’s the relevant section.
7.5. Accompanying a Canadian citizen outside Canada
R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.
In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.
For the purposes of A28(2)(a)(ii) and A28(2)(a)(iv), R61(6) defines a child as being a child of a parent referred to in those subparagraphs who is not and has never been a spouse or common-law partner and is less than 22 years of age.
Some may ask themselves why – given the clarity of the Manual – such cases ever go to court, but let that pass. I don’t know either. Maybe the PR did not know the manual, and maybe the Immigration Officer didn’t think to look at it. Who knows?
Of course, the easiest way is to spend the 730 days in Canada, but if that is not possible, have proof that the time abroad was indeed spent with a Canadian spouse, and have the Operational Manual (or the above abstract) at the ready. That should get the PR safely and peacefully through Immigration to the waiting arms of his or her family!!
This topic has been discussed in other threads, but only as a secondary issue, buried under a topic heading that has nothing to do with a PR counting time abroad toward the PR quota. The purpose here is to bring the matter to the attention of any PRs who cannot meet the PR quota by spending 730 days in Canada per five-year period.
This topic is discussed thoroughly in Permanent Residency Obligations, under the topic Buying an Apartment in Canada to Meet Residency Requirements. Thanks go to Matthew for his excellent research on this complex and important issue, and to the many others like PMM who also contributed important information.
In brief, it does seem that a PR may count time spent abroad toward the PR quota as long as the PR was living with a Canadian citizen. It does not seem to matter whether the PR accompanies the citizen while abroad, or the citizen accompanies the PR – as long as they were living together abroad.
I say “seem” because in one court case the judge would have ruled against the PR (only humanitarian considerations led to a decision in favour of the PR), saying that it was the citizen who accompanied the PR, not vice-versa, and therefore the time abroad did not count toward the PR Quota. To understand this narrower, legalistic interpretation of “accompany”, go to
Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (I.R.B.)
All these cases can be looked up on http://www.canlii.org/en/index.php
Notwithstanding the Smith v. Canada case, several others DO allow the PR to count days abroad IF they were living with a Canadian citizen spouse. The most recent case was Li v. Canada (Citizenship and Immigration), 2009 CanLII 74606 (I.R.B.). Most compelling is the judge’s decision mentioning previous cases, and giving a clear rationale:
“I have looked at two former decisions of this Tribunal which considered this issue. While these decisions are not binding upon me, I consider them to be indicative of the manner in which this Tribunal has interpreted subsection 28(2) of the Act previously.[4] In Mkdsi and Abraham the panels held that the word “accompanying” is to be interpreted according to the common sense and ordinary meaning of the word which includes to “coexist” or “coexisting”.[5] There was no suggestion that the appellant and his wife were not living together in China during the relevant period. Therefore I conclude that the appellant was accompanying his wife.”
The point to take from this decision is that it does not matter who (citizen or PR) had the principal reason to be abroad; the only thing that matters is whether they were living together or not.
So, there are several court or panel decisions that allow the PR to count time spent abroad living with a Canadian spouse, and one that (Smith v. Canada) that worries about who accompanied whom. It would be nice to have 100% certainty on this issue, but we don’t.
There may be some PRs who wouldn’t mind the uncertainty, time, and expense of appearing in front of a panel, but I’d prefer to avoid the whole process if possible. Here’s how.
At the border, if an Immigration Officer is dubious that the PR has met the 730-day quota, have at the ready proof of the days spent abroad with the Canadian spouse, and refer the border officer to CIC Operational Manual ENF 23 Loss of Permanent Resident Status, page 18, section 7.5. Here’s the relevant section.
7.5. Accompanying a Canadian citizen outside Canada
R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.
In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.
For the purposes of A28(2)(a)(ii) and A28(2)(a)(iv), R61(6) defines a child as being a child of a parent referred to in those subparagraphs who is not and has never been a spouse or common-law partner and is less than 22 years of age.
Some may ask themselves why – given the clarity of the Manual – such cases ever go to court, but let that pass. I don’t know either. Maybe the PR did not know the manual, and maybe the Immigration Officer didn’t think to look at it. Who knows?
Of course, the easiest way is to spend the 730 days in Canada, but if that is not possible, have proof that the time abroad was indeed spent with a Canadian spouse, and have the Operational Manual (or the above abstract) at the ready. That should get the PR safely and peacefully through Immigration to the waiting arms of his or her family!!
